File sharing or stealing?

A few days ago I came across an Op-Ed submission that called for file sharing to be decriminalized. The editors here decided not to run it, but it intrigued me for a couple of reasons. First, the author, Karl Sigfrid, is a member of the Swedish Parliament from the Moderate party  a pro-business party that's akin to this country's Libertarians (except in Sweden they're more than just a fringe group). Second, although he covered much of the same ground earlier this year in a Swedish paper, Sigfrid's new piece added another provocative contention: that unauthorized downloading isn't actually theft. Here's an excerpt:

In "The Fatal Conceit: The Errors of Socialism", the economist and Nobel Prize winner F.A. Hayek explains the difference between conventional property rights and copyright. While the supply of material resources is limited by nature, the supply of an immaterial good [is] unlimited, unless the government limits the supply by law . A later Nobel Prize winner, Milton Friedman, describes copyright as a monopoly that decreases supply to a level below the optimal level. Copyright and the regulations that follow from it should, according to Friedman, be described primarily as a limitation of free speech.

In essence, Sigfrid is saying that something in unlimited supply can't be stolen. His position is a variation on a theme advanced by Mike Masnick of Techdirt.com, among others: that the entertainment industry's aggressive copyright-enforcement efforts spring from an outdated, analog-era notion of scarcity. Under this view, copyright holders are helped, not harmed, by file sharing and other online distribution pipelines; they just haven't adapted their business models to take advantage of the new opportunities. Supporters of this view include musicians, authors and filmmakers who say that that file sharing helped bring the exposure they needed to sell their works.

These aren't just academic arguments. They're ammunition in a battle that's raging online to shape the way the public thinks about copyrights. The first salvo was fired by the original Napster, which defined itself as a file-sharing network. That won the semantic high ground by defining unauthorized downloading as "sharing," not "copying" or "duplicating." The implication was that users of these networks were merely being generous with something they possessed, not usurping the rights of copyright holders.

Record labels, music publishers and movie studios contend that copyrights are indeed property, entitled to the same protection as a home or a car. To counter the notion of "sharing," they've advanced an equal powerful metaphor: downloading as theft. "When you go online and download songs without permission, you are stealing," the Recording Industry Assn. of America says on its website. "Piracy is theft, and pirates are thieves, plain and simple. Downloading a movie off of the Internet is the same as taking a DVD off a store shelf without paying for it," adds the Motion Picture Assn. of America. The imagery has been echoed by the news media, lawmakers and college administrators. It's even found its way into the online term-paper site FratFiles.com, which offers a model essay, "Illegal downloading 'is' stealing" (yes, there are shortcuts even for ethics assignments).

Nice image, but it's not a perfect fit. As Sigfrid noted, there's a fundamental difference between intellectual property (copyrights, patents, trademarks) and real property (houses, cars, plasma TVs): The latter is tangible and limited in supply, the former is not. "Copyright infringement is not 'theft' in the same way that taking a CD from a store is theft," said Mark Lemley, a copyright expert at Stanford University Law School. "If I take your physical property, I have it and you no longer do. If I copy your song, I have it, but so do you."

Legal scholars aren't the only ones making that point. You'll see it again and again in discussions online about the propriety, morality and economic impact of file sharing. To Lemley, that suggests the entertainment industry's choice of metaphors has backfired. "Let me be clear: copyright infringement is wrong, and should be punished," he wrote in a recent e-mail. "But simplistic statements that infringement is 'just like' stealing a CD, or using a room in my house, are wrong. They are also counterproductive, because people instinctively know they are wrong, and so they are likely to ignore histrionics of this sort."

So what's the right metaphor? Unauthorized downloading may not be larceny, but it still seems to fit under the broad notion of theft. Even though the copies cost nothing to produce, the data in them has value. Downloaders acquire that value without paying for it. Some say they're not causing any real losses because they buy new copies of the downloaded files they like. But that rationalization wasn't persuasive to Supreme Court Justice Stephen Breyer, who flatly declared in his concurring opinion in MGM vs. Grokster, "Deliberate unlawful copying is no less an unlawful taking of property than garden-variety theft."

The downloading-isn't-stealing faction makes much of the fact that infringements don't deprive copyright owners of their works. But that deprivation is not an essential element in every kind of theft. If you splice into your neighbor's cable wire and get 150 channels for free, you're not diminishing the available supply of cable TV or depriving anyone else in the neighborhood of it. But you're still acquiring something of value without paying for it, and you're doing it without the seller's permission. That's calledtheft of service.

Don't expect Hollywood to start likening illegal downloading to stealing cable, though, no matter how well the shoe fits. Cable pirates are heroes in some quarters, not pariahs, and the cable operators' image problems rival those of the RIAA and the MPAA.

More important, copyright owners want the public to view unauthorized downloading as shoplifting because they want intellectual property to be as respected by society just as much as real property is. But there's more at issue here than just the propriety of file sharing. The imagery associated with infringement also affects debates over other aspects of copyrights, such as how long they should last and who should be responsible for stopping piracy. Likening them to real property tilts the debate by making copyrights seem immutable, when in fact they have a specific social goal: "to promote the progress of science and useful arts," as the Constitution states in Article I. Achieving that goal means balancing the interests of content creators against the public's, which is a much more complicated task than erecting a legal barrier to five-fingered discounts.

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